Eggsware v. Carter

• Court: District Court, N.D. New York
• Decided: October 13, 2022
• Docket: 1:22-cv-00897
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

SHAWN EGGSWARE,

Plaintiff, 1:22-cv-00897 v. (BKS/TWD)

SEAN CARTER, ROBYN RIHANNA FENTY, and ALICIA AUGELLO COOK,

Defendants. _____________________________________________

APPEARANCES:

SHAWN EGGSWARE Plaintiff, pro se 66 2nd Street Apt 3 Waterford, NY 12188

THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION The Clerk has sent to the Court for review a complaint brought pursuant to 42 U.S.C. § 1983, filed by Shawn Eggsware (Plaintiff”). (Dkt. No. 1.) Plaintiff has also moved to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) I. IFP APPLICATION A review of Plaintiff’s IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2.) After reviewing his application, this Court finds Plaintiff is financially eligible for IFP status. Therefore, Plaintiff’s IFP application is granted for purposes of filing only.1

1 Plaintiff should also note that although his IFP Application has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees. II. SUFFICIENCY OF THE COMPLAINT A. Legal Standard This Court must conduct an initial review of complaints filed IFP. 28 U.S.C. § 1915(e). When conducting this review, “the court shall dismiss the case at any time if the court

determines . . . the action . . . is frivolous or malicious . . . [or] fails to state a claim on which relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii); see also Allen v. Stringer, No. 20- 3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant’s complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “An action is frivolous when either: (1) the factual contentions are clearly baseless such

as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id. To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555; see also Fed. R. Civ. P. 8(a)(2). In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. B. Summary of Complaint On August 29, 2022, Plaintiff commenced this action against Sean Carter, Robyn Rihanna Fenty, and Alicia Augello Cook (collectively, “Defendants”), also commonly known as

Jay-Z, Rihanna, and Alicia Keys. (Dkt. No. 1.) Plaintiff’s factual allegations are reproduced in their entirety as follows: “These people are just watching me play with my daughter. I make these homemade videos and every day, they just watch me play with my daughter and then torment her and I on YouTube and Instagram.” Id. at 2. The complaint seeks damages in the amount of $25,000 and the issuance of restraining orders. Id. at 3-4. C. Analysis Plaintiff purportedly brings this action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) Having carefully reviewed Plaintiff’s complaint, the Court recommends that it be dismissed in its entirety. “To state a valid claim under § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-

76 (2d Cir. 1994)). Thus, § 1983 does not create any independent substantive right, but rather “provides a civil claim for damages” to “redress . . . the deprivation of [federal] rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). The requirement that the defendant acted under “color of state law” is jurisdictional. Bennett v. Bailey, No. 5:20-CV-0903 (GTS/ATB), 2020 WL 5775940, at *2 (N.D.N.Y. Aug. 17, 2020), report-recommendation adopted, 2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). Private conduct is simply beyond the reach of § 1983 “‘no matter how discriminatory or wrongful’ that conduct may be.” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Therefore, a plaintiff must establish that the defendant was either a state actor or a private party acting under color of state law. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323 (2d Cir.

2002); see also United States v. Int’l Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 941 F.2d 1292, 1295-96 (2d Cir. 1991) (“Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.’”). A private party engages in state action when they are found to be a “willful participant in joint activity with the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (citing United States v. Price, 383 U.S. 787, 794 (1966)). “Conduct that is ostensibly private can be fairly attributed to the state only if there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” White v. Moylan, 554 F. Supp. 2d 263, 267 (D. Conn. 2008) (citation omitted). Here, there is nothing in the complaint to suggest Defendants are “state actors” or private citizens acting under the color of state law. There is no indication that Defendants were a

“willful participant” in joint activity with the State, or in any way established a “close nexus” with the State. Adickes, 398 U.S. at 152; White, 554 F. Supp. 2d at 267. Because Defendants are private citizens, and Plaintiff’s allegations do not involve conduct the Court construes to be joint activity with the State, Plaintiff has failed to allege a claim pursuant to § 1983, which would raise a federal question. Further, even if, arguendo, Plaintiff had named state actors or demonstrated Defendants were persons acting under color of state law, there is nothing in the complaint that suggests, even under the most liberal reading, that any constitutional right of Plaintiff’s was violated through the alleged invasion of his privacy as described in the complaint. Even applying special solicitude, the undersigned can identify no other law or statute under which Plaintiff can properly bring his

claim in this Court. Nor does the complaint satisfy the requirements of diversity jurisdiction. Diversity jurisdiction can be established when the case is between citizens of different States and the “matter in controversy exceeds the sum or value of $75,000[.]” 28 U.S.C.A. § 1332(a)(1). The complaint fails to establish complete diversity of citizenship between the parties and the amount in controversy is not met in this case. Therefore, the Court recommends dismissal of the complaint for lack of subject matter jurisdiction. Thus, any dismissal must be without prejudice. Hollander v. Garrett, 710 F. App’x 35, 36 (2d Cir. 2018) (“[D]ismissal for subject matter jurisdiction must be without prejudice.”). D. Opportunity to Amend Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,

131 (2d Cir. 1993). “[L]ack of subject matter jurisdiction is a substantive defect that cannot be cured by better pleading.” Moran v. Proskauer Rose LLP, No. 1:17-CV-00423 (MAD/TWD), 2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017); see also Guillory v. Bishop Nursing Home, 21-CV-0410 (MAD/ATB), 2021 WL 2431259, at *3 (N.D.N.Y. June 15, 2021) (dismissing the complaint “without prejudice” and “without leave to amend” because the Court “lack[ed] . . . subject matter jurisdiction”). This Court has serious doubts about whether Plaintiff can amend to assert any form of federal jurisdiction over the situation that he describes in his complaint. Nevertheless, in deference to Plaintiff’s pro se status and out of an abundance of caution, the Court recommends affording Plaintiff an opportunity to amend his complaint.2

2 Should Plaintiff be permitted to amend his complaint, any amended pleading must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint, which shall supersede and replace in its entirety the previous complaint filed by Plaintiff, must contain sequentially numbered paragraphs containing only one act of misconduct per paragraph. Thus, if Plaintiff claims that his civil and/or constitutional rights were violated by more than one defendant, or on more than one occasion, he should include a corresponding number of paragraphs in his amended complaint for each such allegation, with each paragraph specifying (i) the alleged act of misconduct; (ii) the date, including the year, on which such misconduct occurred; (iii) the names of each and every individual who participated in such misconduct; (iv) where appropriate, the location where the alleged misconduct occurred; and, (v) the nexus between such misconduct and Plaintiff’s civil and/or constitutional rights. Plaintiff is further cautioned that no portion of his prior complaint shall be incorporated into his amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth all of the claims he intends to assert against the defendants and must demonstrate that a case or controversy exists between Plaintiff and the defendants which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. If Plaintiff is alleging that the named defendants violated a law, he should specifically refer to such law. E. Warning Plaintiff has a history of filing IFP complaints in the Northern District of New York that are dismissed on initial review. See Eggsware v. Albany Masonic Temple et al., 1:21-cv-00933- GLS-ML (filed 08/18/21; closed 04/14/22); Eggsware v. United States Secret Service et al.,

1:21-cv-01029-GTS-CFH (filed 09/17/21; closed 05/11/22); Eggsware v. East Coast Syndicate et al., 1:21-cv-01064-LEK-CFH (filed 09/27/21; closed 05/05/22); Eggsware vs. Doe, 1:22-cv- 00054-BKS-CFH (filed 01/21/22; closed 03/18/22); Eggsware v. Winfrey et al., 1:22-cv-00077- GLS-DJS (filed 01/27/22; closed 05/02/22); Eggsware v. Google et al., 1:22-cv-00868-GTS-DJS (filed 08/22/22).3 Plaintiff is cautioned that the filing of vexatious, harassing, or duplicative lawsuits may result in the imposition of sanctions, including limitations on his ability to file without prior permission of the Court. See Ajamian v. Nimeh, 14-CV-0320 (GTS), 2014 WL 6078425, at *3 (N.D.N.Y. Nov. 13, 2014) (“[A] federal district court may impose reasonable filing restrictions on a pro se litigant in that particular court, pursuant to 28 U.S.C. § 1651(a) and its inherent

authority to control and manage its own docket so as to prevent abuse in its proceedings.”); see also In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff has demonstrated a “clear pattern of abusing the litigation process by filing vexatious and frivolous complaints,” a “leave to file” requirement may be instituted by the court as an appropriate sanction); Hong Mai

3 On August 31, 2022, U.S. Magistrate Judge Stewart reviewed Plaintiff’s IFP complaint in Eggsware v. Google et al, 1:22-cv-00868, which also asserts a single cause of action for invasion of privacy against numerous celebrities on a form Section 1983 complaint and recommended dismissal of the complaint with leave to amend. See Eggsware v. Google et al, 1:22-cv-00868 GTS-DJS (Dkt. No. 6). On October 11, 2022, U.S. District Judge Suddaby accepted and adopted the report-recommendation in its entirety. Id., Dkt. No. 7. As such, Plaintiff’s complaint in Eggsware v. Google et al, 1:22-cv-00868 shall be dismissed unless, within thirty (30) days from the date of that Order, Plaintiff files an amended complaint correcting the pleading defects identified in the report-recommendation. Id. Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.”). WHEREFORE, for the reasons stated herein, it is hereby ORDERED that Plaintiff's IFP application (Dkt. No. 2) is GRANTED; and it is further RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO REPLEAD; and it is further ORDERED that the Clerk serve a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff. Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written objections to the foregoing report.* Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). IT IS SO ORDERED. Dated: October 13, 2022 Syracuse, New York a zy /. Therese Wiley Dancks United States Magistrate Judge * If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).

2021 WL 4472667 appeal. Only the Westlaw citation is currently available. United States Court of Appeals, Second Circuit. We review de novo a district court's sua sponte dismissal of a complaint under 28 U.S.C. § 1915(e)(2). Zaleski v. Burns, Doran ALLEN, Plaintiff-Appellant, 606 F.3d 51, 52 (2d Cir. 2010). Under that statute, the district v. court must dismiss a complaint filed in forma pauperis if Scott M. STRINGER, New York City Comptroller, it determines that the action “(i) is frivolous or malicious; Warden AMKC-C-95, Defendants-Appellees. (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is 20-3953 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). To | avoid dismissal, a complaint must plead “enough facts to September 30, 2021 state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft Appeal from a judgment of the United States District Court v. Iqbal, 556 U.S. 662, 678 (2009) (recognizing that “legal for the Southern District of New York (Stanton, J.). conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do UPON DUE CONSIDERATION, IT IS HEREBY not suffice” to plead a viable claim). Pro se submissions are ORDERED, ADJUDGED, AND DECREED that the reviewed with “special solicitude,” and “must be construed judgment of the district court is AFFIRMED. liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d Attorneys and Law Firms 471, 474–75 (2d Cir. 2006) (internal quotation marks and FOR PLAINTIFF-APPELLANT: Doran Allen, pro se, emphasis omitted). Ossining NY. Conditions-of-confinement claims brought by pretrial FOR DEFENDANTS-APPELLEES: No appearance. detainees are analyzed under the Fourteenth Amendment's Due Process clause. Darnell v. Pineiro, 849 F.3d 17, 29 PRESENT: RICHARD C. WESLEY, RICHARD J. (2d Cir. 2017). To state such a claim, a plaintiff must SULLIVAN, Circuit Judges, JOHN G. KOELTL, District satisfy both an objective prong and a subjective prong. Judge.* See id. The objective prong requires “showing that the challenged conditions were sufficiently serious to constitute * Judge John G. Koeltl of the United States District objective deprivations of the right to due process,” while Court for the Southern District of New York, sitting the subjective prong requires “showing that [an] officer by designation. acted with at least deliberate indifference to the challenged conditions.” Id. (internal quotation marks omitted). If a conditions-of-confinement claim is predicated on an unsafe condition, a court will analyze “whether society considers SUMMARY ORDER the risk that the prisoner complains of to be so grave that it Appellant Doran Allen, proceeding pro se, sued Scott M. violates contemporary standards of decency to expose anyone Stringer, in his capacity as New York City Comptroller, and unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, the unnamed warden of the Rikers Island Anna M. Kross 36 (1993). Center (“AMKC”) under 42 U.S.C. § 1983 for violations of the Due Process Clause of the Fourteenth Amendment. Allen Allen alleges that he slipped or tripped on broken stairs, alleges that, while he was detained at AMKC, a corrections causing him to fall. But while the existence of broken stairs officer refused to help him carry breakfast trays, causing him could be deemed to constitute negligence on the part of to slip and fall on broken stairs, injuring himself. The district the prison, broken stairs alone cannot satisfy the objective court dismissed the complaint sua sponte for failure to state a prong of a conditions-of-confinement claim. See McCray v. claim. We assume the parties’ familiarity with the underlying Lee, 963 F.3d 110, 120 (2d Cir. 2020) (explaining that the defendant's complaint alleging unconstitutional conditions of show “exceptional circumstances” that would “elevate” the The district court also did not abuse its discretion by declining conditions “beyond the typical level of danger presented by to exercise supplemental jurisdiction over any state-law a slippery sidewalk or a wet floor”). Because broken stairs claims because the district court properly dismissed Allen's cannot be considered a risk that is “so grave that it violates § 1983 claim, the only claim over which it had original contemporary standards of decency,” Allen's conditions-of- jurisdiction. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d confinement claim was properly dismissed. Helling, 509 U.S. 118, 122 (2d Cir. 2006) (“[A] district court may decline at 36. to exercise supplemental jurisdiction if it has dismissed all claims over which it has original jurisdiction.” (internal *2 But even if it could be argued that Allen alleged quotation marks omitted)). an objectively serious condition, the district court properly dismissed Allen's claims against Stringer and the AMKC Finally, the district court did not err by denying Allen leave warden due to the obvious deficiencies in Allen's complaint. to amend his complaint. A district court should not dismiss a As the district court concluded, the suit against the warden in pro se plaintiff's complaint without granting leave to amend his official capacity was more properly a suit against the City “when a liberal reading of the complaint gives any indication of New York because Allen did not allege that the warden that a valid claim might be stated.” Cuoco v. Moritsugu, personally had done or failed to do anything that violated 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks his rights. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits omitted). As discussed above, the incident involving the against state officials in their official capacity... should be corrections officer and the broken steps did not amount to a treated as suits against the State.”). Similarly, Stringer, as the due process violation, and that deficiency in the complaint New York City Comptroller, is sued in his official capacity. cannot not be cured. Accordingly, amendment would have Allen was therefore obligated to allege sufficient facts been futile. showing that the Fourteenth Amendment violation occurred We have considered all of Allen's remaining arguments and “pursuant to a municipal policy or custom,” Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (citing, inter find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. alia, Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692–94 (1978)), or was caused by a “failure to train,” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (citing Monell, All Citations 436 U.S. at 694). Allen did not allege any facts showing that the corrections officer acted pursuant to an unconstitutional Not Reported in Fed. Rptr., 2021 WL 4472667 policy or custom, or that the City of New York failed to train its corrections officers, as required for such a claim. End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2015 WL 151029 Recommendation (Dkt. No. 4) is ACCEPTED and Only the Westlaw citation is currently available. ADOPTED in its entirety; and it is further United States District Court, N.D. New York. ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED without leave to replead and without prejudice. Rudoph M. BRUCE, II, on behalf of himself and his son, T.R.B., Plaintiff, The Court hereby certifies, for purposes of 28 U.S.C. § v. 1915(a) (3), that any appeal taken from the Court's final TOMPKINS CNTY. DEP'T OF SOC. SERVS., judgment in this action would not be taken in good faith. through Kit KEPHART, Cmm'r; Jennifer M. Donlan, Esq.; and Patricia A. Carey, Comm'r, Tompkins Cnty. Dep't of Soc. Servs., Defendants. REPORT, RECOMMENDATION, AND ORDER No. 5:14–CV–0941 (GTS/DEP). DAVID E. PEEBLES, United States Magistrate Judge. | Pro se plaintiff Rudolph M. Bruce, II., purporting to act Signed Jan. 7, 2015. on behalf of himself and his son, T.R.B., has commenced Attorneys and Law Firms this action against Tompkins County Department of Social Services (“DSS”) and two individuals, pursuant to 42 U.S.C. Rudolph M. Bruce, II, Newfield, NY, pro se. § 1983, alleging that the defendants have deprived him and his son of their civil rights. Plaintiff's complaint and accompanying application for leave to proceed in forma DECISION and ORDER pauperis (“IFP”) have been referred to me for consideration. For the reasons set forth below, I recommend that plaintiff's GLENN T. SUDDABY, District Judge. complaint be dismissed without leave to replead. *1 Currently before the Court, in this pro se civil rights action filed by Rudolph M. Bruce, II, on behalf I. BACKGROUND of himself and his son T.R.B. (“Plaintiff”) against the This action was commenced on July 28, 2014. Dkt. No. 1. above-captioned county and two individuals (“Defendants”) Plaintiff's complaint asserts claims on his behalf and on behalf arising from a currently pending proceeding in Tompkins of his son, T.R.B., and names Tompkins County DSS, Kit County Family Court, are (1) United States Magistrate Judge Kephart, Jennifer M. Donlan, Esq., and Patricia A. Carey as David E. Peebles' Report–Recommendation recommending defendants. Id . at 1–2. Plaintiff's complaint is accompanied that Plaintiff's Complaint be dismissed without leave to by an application for leave to proceed IFP. Dkt. No. 2. replead and without prejudice pursuant to the Younger doctrine, and (2) Plaintiff's two-page Objection, which fails to In his complaint, plaintiff alleges that his son's First contain a specific challenge to the Report–Recommendation. Amendment right of free speech was infringed by the (Dkt.Nos .4, 5.) After carefully reviewing the relevant filings defendants, who apparently took custody of T.R.B. and his in this action, the Court can find no clear error in the Report– siblings1 on or about June 17, 2014, based upon T.R.B.'s Recommendation: Magistrate Judge Peebles employed the statement that “he would rather be dead if he could not be with correct legal standards, accurately recited the facts, and his family.”2 Dkt. No. 1 at 5. The complaint suggests that, reasonably applied the law to those facts. As a result, the prior to taking custody of T.R.B. and his siblings, Tompkins Court accepts and adopts the Report–Recommendation for County DSS investigated a complaint of alleged child neglect, the reasons stated therein. (Dkt. No. 4.) The Court would and proceedings before Honorable Joseph R. Cassidy, a add only that Magistrate Judge Peebles' thorough Report– Tompkins County Family Court Judge, have commenced Recommendation would survive even a de novo review. regarding the custody of the children. Id. at 6. ACCORDINGLY, it is sister, and plaintiff's IFP application indicates that 1. Standard of Review Because I have granted plaintiff's motion to proceed in forma plaintiff has three children. Dkt. No. 1 at 5; Dkt. pauperis, I must review the sufficiency of the claims set forth No. 2 at 2. in his complaint in light of 28 U.S.C. § 1915(e). Section 2 Plaintiff's complaint does not disclose the age of 1915(e) directs that, when a plaintiff seeks to proceed IFP, T.R.B. Dkt. No. 1. “the court shall dismiss the case at any time if the court determines that ... the action ... (i) is frivolous or malicious; *2 Liberally construed, plaintiff's complaint alleges that (ii) fails to state a claim on which relief may be granted; or defendants have deprived him of his right to custody of (iii) seeks monetary relief against a defendant who is immune his children under the First, Fourth, Fifth, and Fourteenth from such relief.” 28 U.S.C. § 1915(e)(2)(B). Amendments, and have deprived T.R.B. of his First Amendment right to free speech. See generally Dkt. No. 1. As In deciding whether a complaint states a colorable claim, relief, plaintiff seeks (1) return of his children to his custody a court must extend a certain measure of deference in and (2) Judge Cassidy's recusal from the pending family favor of pro se litigants, Nance v. Kelly, 912 F.2d 605, court matter in Tompkins County or removal of the matter to 606 (2d Cir.1990) (per curiam), and extreme caution should Broome County. Id. at 4, 7. be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to address the sufficiency II. DISCUSSION of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d A. Application to Proceed IFP 37, 41 (2d Cir.1983). However, the court also has an When a civil action is commenced in a federal district court, overarching obligation to determine that a claim is not legally the statutory filing fee, currently set at $400, must ordinarily frivolous before permitting a pro se plaintiff's complaint be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to proceed. See, e.g., Fitzgerald v. First East Seventh St. to permit a litigant to proceed IFP if it determines that he is Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) (holding that unable to pay the required filing fee. 28 U.S.C. § 1915(a)(1).3 a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory In this instance, because I conclude that plaintiff meets the filing fee). “Legal frivolity ... occurs where ‘the claim is based requirements for IFP status, his application is granted.4 on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive 3 The language of that section is ambiguous, in that defense clearly exists on the face of the complaint.’ “ Aguilar it suggests an intent to limit availability of IFP v. United States, Nos. 99–MC–0304, 99–MC–0408, 1999 WL status to prison inmates. See 28 U.S.C. § 1915(a) 1067841, at *2 (D.Conn. Nov. 8, 1999) (quoting Livingston v. (1) (authorizing the commencement of an action Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998)); without prepayment of fees “by a person who see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) submits an affidavit that includes a statement of (“[D]ismissal is proper only if the legal theory ... or factual all assets such prisoner possesses”). Courts have contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d. construed that section, however, as making IFP 51, 53 (2d Cir.1995) (“[T]he decision that a complaint is based status available to any litigant who can meet the on an indisputably meritless legal theory, for the purposes of governing financial criteria. Hayes v. United States, dismissal under section 1915(d), may be based upon a defense 71 Fed. CI. 366, 367 (Fed.Cl.2006); see also that appears on the face of the complaint.”). Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n. 1 (S.D.N.Y.2002). *3 When reviewing a complaint under section 1915(e), the court looks to applicable requirements of the Federal Rules 4 Plaintiff is reminded that, although his IFP of Civil Procedure for guidance. Specifically, Rule 8 of the application has been granted, he will still be Federal Rules of Civil Procedure provides that a pleading required to pay fees that he incurs in this action, must contain “a short and plain statement of the claim including copying and/or witness fees. showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the defense and determine whether the doctrine of res judicata is Second, “[a] state plainly has an interest in the outcome of applicable.” Powell v. Marine Midland Bank, 162 F.R .D. 15, a child custody dispute adjudicated in its courts.” Grieve 16 (N.D.N.Y.1995) (McAvoy, J.) (quotation marks and italics v. Tamerin, 269 F.3d 149, 152–53 (2d Cir.2001). Turning omitted). to the third condition, “the relevant question under Younger is whether the state's procedural remedies could provide A court should not dismiss a complaint if the plaintiff the relief sought not whether the state will provide the has stated “enough facts to state a claim to relief that is constitutional ruling which the plaintiff seeks.” Spargo v. plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. N.Y. State Comm'n of Judicial Conduct, 351 F.3d 65, 79 (2d 544, 570 (2007). “A claim has facial plausibility when the Cir.2003) (quotation marks, alterations, emphasis omitted). plaintiff pleads factual content that allows the court to draw Courts in this circuit have frequently concluded that a the reasonable inference that the defendant is liable for pending proceeding in state family court “affords ... adequate the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, opportunity for judicial review of [a plaintiff's] constitutional 678 (2009). Although the court should construe the factual claims.” Best v. City of N.Y., No. 12–CV–7874, 2014 WL allegations in a light most favorable to the plaintiff, “the tenet 163899, at *10 (S.D.N.Y. Jan. 15, 2014); see also Hidalgo that a court must accept as true all of the allegations contained v. N.Y., 11–CV–5074, 2011 WL 5838494, at *3 (E.D.N.Y.21, in a complaint is inapplicable to legal conclusions.” Iqbal, 556 2011); Reinhardt v. Mass. Dep't of Soc. Servs., 715 F.Supp. U.S. at 678. “Threadbare recitals of the elements of a cause 1253, 1257 (S.D.N.Y.1989). of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus, “where Based upon the foregoing, I recommend that the court abstain the well-pleaded facts do not permit the court to infer more from addressing any of the claims asserted in the plaintiff's than the mere possibility of misconduct, the complaint has complaint, all of which relate directly to the proceeding alleged-but it has not ‘show[n]'-‘that the pleader is entitled to pending in Tompkins County Family Court. relief.’ “ Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). C. Whether to Permit Amendment 2. Analysis of Plaintiff's Claims Ordinarily, a court should not dismiss a complaint filed by a It is clear from plaintiff's complaint that the claims asserted pro se litigant without granting leave to amend at least once on his behalf and on behalf of T.R.B. directly relate to “when a liberal reading of the complaint gives any indication a pending proceeding before Judge Cassidy in Tompkins that a valid claim might be stated.” Branum v. Clark, 927 F.2d County Family Court regarding the custody of T.R.B. and 698, 704–05 (2d Cir.1991); see also Fed.R.Civ.P. 15(a) ( “The his siblings. Dkt. No. 1 at 6. Pursuant to Younger v. Harris, court should freely give leave when justice so requires.”); 401 U.S. 37, 43–45 (1971), and its progeny, however, a see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. federal district court does not have jurisdiction over an action 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where seeking injunctive or declaratory relief “where ‘1) there is court could “not determine that the plaintiffs would not, an ongoing state proceeding; 2) an important state interest under any circumstances, be able to allege a civil RICO is implicated; and 3) the plaintiff has an avenue open for conspiracy”). An opportunity to amend is not required, review of constitutional claims in state court.’ “ Parent v. N.Y., however, where “the problem with [the plaintiff's] causes of 485 F. App'x 500, 503 (2d Cir.2012) (quoting Liberty Mut. action is substantive” such that “better pleading will not cure Ins. Co. v. Hurlbut, 585 F.3d 639, 647 (2d Cir.2009)). The it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see Younger doctrine “applies with equal force to [both criminal also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 and] civil proceedings,” including proceedings pending in (2d Cir.1991) (“Of course, where a plaintiff is unable to allege family courts. Parent, 485 F. A'ppx at 503; Donkor v. City any fact sufficient to support its claim, a complaint should of N.Y. Human Res. Admin. Special Servs. for Children, 673 be dismissed with prejudice.”). Stated differently, “[w]here F.Supp. 1221, 1224 (S.D.N.Y.1987). it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to *4 In this case, it is clear from plaintiff's complaint that amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d the three conditions necessary to establish Younger abstention Cir.1993); accord, Brown v. Peters, No. 95–CV–1641, 1997 are satisfied. First, as discussed above, there is an ongoing WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). the claims asserted in plaintiff's complaint on his behalf reflects that he is eligible for that status. Because all of and on behalf of T.R .B. due to the pending proceeding in plaintiff's claims asserted both on his behalf and on behalf of Tompkins County Family Court, and no amendment to the T.R.B. relate to an ongoing proceeding in Tompkins County complaint could cure this defect. Accordingly, I recommend Family Court, however, I recommend that the court abstain from adjudicating any of them. Based upon the foregoing, it that plaintiff not be granted leave to replead.5 is hereby 5 It is worth noting that plaintiff is precluded from ORDERED that plaintiff's leave to proceed in this action in pursuing claims on behalf of his son, T.R.B., pro se. forma pauperis (Dkt. No. 2) is GRANTED; and it is further See Cheung v. Youth Orchestra Found. of Buffalo, hereby respectfully Inc., 906 F.2d 59, 61 (2d Cir.1990) (“[A] non- attorney parent must be represented by counsel in RECOMMENDED that plaintiff's complaint be DISMISSED bringing an action on behalf of his or her child.”); without leave to replead and without prejudice. see also Fauconier v. Comm. on Special Educ., No. 02–CV–1050, 2003 WL 21345549, at *1 (S.D.N.Y. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties June 10, 2003). In the event my recommendation may lodge written objections to the foregoing report. Such that plaintiff's complaint be dismissed without objections must be filed with the clerk of the court within leave to replead is not adopted by the district FOURTEEN days of service of this report. FAILURE judge, and any of the claims asserted on behalf TO SO OBJECT TO THIS REPORT WILL PRECLUDE of T.R.B. survive, plaintiff must first obtain legal APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. representation to pursue those claims. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993). In addition, because Tompkins County DSS is not amenable to suit, Hoisington v. Cnty. of Sullivan, It is hereby ORDERED that the clerk of the court serve a 55 F.Supp.2d 212, 214 (S.D.N.Y.1999), in the event copy of this report and recommendation upon the parties in any portion of the plaintiff's complaint survives accordance with this court's local rules. review by the district judge, I recommend that Tompkins County be substituted as a defendant in the place of Tompkins County DSS. Filed Sept. 4, 2014. All Citations III. SUMMARU AND RECOMMENDATION Not Reported in F.Supp.3d, 2015 WL 151029 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2014 WL 6078425 the face of the record in order to accept the recommendation.” Only the Westlaw citation is currently available. Id.; see also Batista v. Walker, 94–CV–2826, 1995 WL United States District Court, 453299, at *1. (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I N.D. New York. am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as Robert H. AJAMIAN, Plaintiff, those sections are not facially erroneous.”) (internal quotation v. marks and citations omitted). Kinah NIMEH, Stock Broker at Gunn Allen Financial, Arbitration 13–02183, Defendant. Here, based upon a review of this matter, the Court can find no error with Magistrate Judge Hummel's Report– No. 1:14–CV–0320 (GTS/CFH). Recommendation, clear or otherwise. (Dkt. No. 15.) | Magistrate Judge Hummel employed the proper standards, Signed Nov. 13, 2014. accurately recited the facts, and reasonably applied the law to those facts. (Id.) Further, Magistrate Judge Hummel's Report– Attorneys and Law Firms Recommendation would survive even a de novo review. As a result, the Report–Recommendation is accepted and adopted Robert H. Ajamian, Latham, NY, pro se. in its entirety for the reasons stated therein. DECISION and ORDER II. Proposed Amended Complaint Ostensibly pursuant to Magistrate Judge Hummel's Hon. GLENN T. SUDDABY, District Judge. recommendation that this Court grant Plaintiff leave to file an amended complaint, Plaintiff prematurely filed a *1 Currently before the Court, in the above-captioned proposed amended complaint, but did so by insisting that civil rights action filed by Robert H. Ajamian (“Plaintiff”) it be treated as a separate action. (See Ajamian v. Gunn against the above-captioned Defendants, is United States Allen Fin., et al., 1:14–CV–1211 [DNH/ATB].) As Magistrate Magistrate Christian F. Hummel's Report–Recommendation Judge Andrew T. Baxter observed, that complaint adds a recommending that Plaintiff's Complaint be dismissed defendant, adds facts and changes the basis for Plaintiff's pursuant to 28 U.S.C. § 1915 and § 1915A for failure to state allegation of jurisdiction. (See id., Dkt. No. 5) However, a claim but otherwise granting Plaintiff leave to submit an because that complaint is “challenging the same conduct by amended complaint. (Dkt. No. 15.) Plaintiff has not filed an the same defendant at the same time as the complaint in [this objection to the Report–Recommendation and the deadline action],” Magistrate Judge Baxter closed the separate action in which to do so has expired. (See generally Docket Sheet.) and directed that the complaint filed therein be filed as a Instead, Plaintiff has filed a proposed amended complaint. proposed amended complaint in this action. (See id., Dkt. For the reasons set forth below, Magistrate Judge Hummel's No. 5.) Therefore, the Court will review Plaintiff's proposed Report–Recommendation is accepted and adopted in its amended complaint to determine whether a meritorious claim entirety. In addition, Plaintiff's proposed amended complaint is stated, which would allow the action to go forward. is denied and this action is dismissed with prejudice. Further, Plaintiff is directed to show cause, within thirty (30) days of *2 As an initial matter, it is important to note that Plaintiff this Decision and Order, as to why he should not be barred filed an exact copy of the original complaint in this action in from filing any future pro se documents or motions in this the United States District Court for the District of Columbia action without first obtaining leave of the Court. on June 10, 2014, which was thereafter transferred to the Eastern District of New York. See Ajamian v. Nimeh, 2:14– I. Report–Recommendation CV–4093(JS/GRB). On September 26, 2014, the District When no objection is made to a report-recommendation, the Judge in that case dismissed Plaintiff's claims without Court subjects that reportrecommendation to only a clear prejudice and granted Plaintiff leave to file an amended error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: complaint within thirty days of the filing of the Order. See 1983 Addition. When performing such a “clear error” review, Ajamian v. Nimeh, No. 14–CV–409, 2014 WL 4828884, at the time allowed, the Complaint shall be DISMISSED WITH on lack of merit.4 PREJUDICE.” Id. (emphasis in original). Plaintiff having not filed an amended complaint in that action within the 1 See Ajamian v. State of New York, No. 13–CV– time allowed, his claims have been dismissed with prejudice. 1316, Complaint (N.D.N.Y. filed Oct. 23, 2013) For this reason, the Court finds that the proposed amended (pro se civil rights action); Ajamian v. Morgan complaint in this action is futile because Plaintiff is estopped Stanley Smith Barney, et. al, No. 14–CV–0306, from pursuing his claims under the doctrine of res judicata. Complaint (N.D.N.Y. filed Mar. 21, 2014) (pro Under the doctrine of res judicata, or claim preclusion, se civil rights action); Ajamian v. Morgan Stanley a final judgment on the merits of an action precludes Smith Barney, et. al, No. 14–CV–0319, Complaint the parties or their privies from relitigating issues that (N.D.N.Y. filed Mar. 24, 2014) (pro se civil were or could have been raised in that action. Thus, the rights action; Ajamian v. Nimeh, No. 14–CV–0320, doctrine bars later litigation if an earlier decision was (1) a Complaint (N.D.N.Y. filed Mar. 24, 2014) (pro se final judgment on the merits, (2) by a court of competent civil rights action); Ajamian v. Zakarian, No. 14– jurisdiction, (3) in a case involving the same parties or CV–0321, (N.D.N.Y.2014) (current action barred their privies, and (4) involving the same cause of action. by res judicata ); Ajamian v. Nimeh, No. 14–CV– EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 4093, (E.D.N.Y.2014) (pro se civil rights action); 621, 624 (2d Cir.2007) (internal citations and quotation Ajamian v. Zakarian, No. 14–CV–1127, Complaint omitted). (N.D.N.Y. filed Sept. 15, 2014) (pro se civil rights action); Ajamian v. Morgan Stanley Smith Barney, A dismissal with prejudice has the effect of a final et. al, No. 14–CV–1204, Complaint (N.D.N.Y. adjudication on the merits favorable to defendant and bars filed Oct. 1, 2014) (pro se civil rights action); future suits brought by plaintiff upon the same cause of Ajamian v. Nimeh, No. 14–CV–1211, Complaint action. Such a dismissal constitutes a final judgment with (N.D.N.Y. filed Oct. 3, 2014) (pro se civil rights the preclusive effect of res judicata not only as to all action). matters litigated and decided by it, but as to all relevant 2 issues which could have been but were not raised and See Ajamian v. State of New York, No. 13–CV– litigated in the suit. 1316, Judgment (N.D.N.Y. filed August 11, 2014) (dismissing with prejudice for failure to state a Nemaizer v. Baker, 793 F.2d 58, 60–61 (2d Cir.1986) (internal claim and lack of subject matter jurisdiction); citations and quotation omitted). Ajamian v. Morgan Stanley Smith Barney, et. al, No. 14–CV–0306, Judgment (N.D.N.Y. filed May Consequently, Plaintiff's claims in his original complaint 28, 2014) (dismissing with prejudice for failure as well as those in the proposed amended complaint are to state a claim); Ajamian v. Morgan Stanley precluded under the doctrine of res judicata. See Nemaizer, Smith Barney, et. al, No. 14–CV–0319, Text Order 793 F.2d, at 61. For this reason, Plaintiff's proposed amended (N.D.N.Y. filed Mar. 26, 2014) (terminated action complaint is denied and this action is dismissed without as duplicative of 14–CV–306); Ajamian v. Nimeh, prejudice. No. 14–CV0320 (N.D.N.Y.2014) (current action barred by res judicata); Ajamian v. Zakarian, No. 14–CV0321, Judgment (N.D.N.Y. filed Aug. III. Appropriateness of Bar Order 26, 2014) (dismissed with prejudice for failure A review of Plaintiff's litigation history on the Federal to state a claim and lack of subject matter Judiciary's Public Access to Court Electronic Records jurisdiction); Ajamian v. Nimeh, No. 14–CV–4093, (“PACER”) Service reveals that, over the past year, Plaintiff Memorandum & Order (E.D.N.Y. filed Sept. 26, has filed nine pro se civil actions (including this one) in two 2014) (dismissed with prejudice for failure to state different federal district courts.1 Eight of these nine actions, a claim); Ajamian v. Morgan Stanley Smith Barney, including the current action, have been dismissed based on et. al, No. 14–CV–1204, Judgment (N.D.N.Y. pleading deficiencies or procedural failures.2 In addition, filed Oct. 30, 2014) (dismissed with prejudice for Judgment (N.D.N .Y. filed Oct. 9, 2014) (closed Moates v. Barkley, 147 F.3d 207, 208 (2d Cir.1998) ( “[T]he and ordered that complaint be filed as proposed district court may not impose a filing injunction on a litigant amended complaint in 14–CV320). sua sponte without providing the litigant with notice and 3 an opportunity to be heard.”); Azubuko v. Unknown Boston See Ajamian v. Morgan Stanley Smith Barney, LLC, Police Officers, 08–CV–0330, 2008 WL 1767067, at *1 No. 14–2212, Notice of Appeal (2d Cir. filed June (N.D.N.Y. Apr. 16, 2008) (McCurn, J.). 4, 2014); Ajamian v. State of New York, No. 14– 2934, Notice of Appeal (2d Cir. filed Aug. 15, Because of his history of filing unmerited and indeed 2014); Ajamian v. Zakarian, No. 14–3432, Notice vexatious lawsuits, including the current action, Plaintiff is of Appeal (2d Cir. filed Sept. 2, 2014); Ajamian hereby warned that the Court will not tolerate the filing of v. Morgan Stanley Smith Barney, 14–CV–1204, frivolous documents or motions in this action by him in Notice of Appeal to 2d Cir. (N.D.N.Y. filed Nov. 3, the future. As a result, Plaintiff is directed to show cause, 2014). within thirty (30) days, why this Court should not issue an 4 Order barring him from filing any future pro se documents See Ajamian v. Morgan Stanley Smith Barney, or motions in this action without first obtaining leave of the LLC, No. 14–2212, Order (2d Cir. filed Sept. 24, Court. In the event that Plaintiff fails to show such cause, he 2014) (dismissing appeal for lack of arguable basis will be prohibited from filing, in this action, any documents in law or fact); Ajamian v. State of New York, or motions without prior leave of the Court, pursuant to 28 No. 14–2934, Order (2d Cir. filed Oct. 22, 2014) U.S.C. § 1651(a) and the Court's inherent authority to control (dismissing appeal for lack of arguable basis in law and manage its own docket so as to prevent abuse in its or fact) (motion for reconsideration pending). proceedings. *3 Based on Plaintiff's litigation history, the Court finds that (1) Plaintiff lacks a good-faith expectation in prevailing Further, in the event Plaintiff fails to show such cause, in his lawsuits, (2) he has proven himself to be vexatious this case will be forwarded to Chief United States District and indeed incorrigible when proceeding pro se, (3) he Judge Gary L. Sharpe with the recommendation of the has caused needless expense to other parties and placed an undersigned that an Anti–Filing Injunction Order be issued unnecessary burden on the Court and its personnel, and (4) against Plaintiff, which would prohibit Plaintiff from filing, he has demonstrated that no lesser sanctions (e.g., such as in the Northern District of New York, any action pro se (that dismissal or chastisement) would be adequate to protect the is, without counsel) without first obtaining leave of the Court. Court and other parties. *4 ACCORDINGLY, it is Under such circumstances, a federal district court may impose reasonable filing restrictions on a pro se litigant in that ORDERED that Magistrate Judge Hummel's Report– particular court, pursuant to 28 U.S.C. § 1651(a) and its Recommendation (Dkt. No. 15) is ACCEPTED and inherent authority to control and manage its own docket ADOPTED in its entirety; and it is further so as to prevent abuse in its proceedings. For example, a federal district court may, after providing an appropriate ORDERED that Plaintiff's proposed amended complaint opportunity to be heard, prohibit a vexatious litigant from (Dkt. No. 32) is DENIED; and it is further filing, in that particular court, any action pro se (that is, without counsel), without prior leave of that court. See Hong ORDERED that Plaintiff's Complaint (Dkt. No. 1) is Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.2005) (“If a litigant DISMISSED with prejudice; and it is further has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions ORDERED that Plaintiff is hereby directed to show cause, on future access to the judicial system.”) [internal quotations within thirty (30) days of this Decision and Order, why this and citations omitted]; In re Sassower, 20 F.3d 42, 44 (2d Court should not issue an Order barring him from filing any Cir.1994) (where a pro se plaintiff has demonstrated a “clear future pro se documents or motions in this action without pattern of abusing the litigation process by filing vexatious first obtaining leave of the Court. In the event that Plaintiff and frivolous complaints,” a “leave to file” requirement fails to show such cause, he will be prohibited from filing, without counsel) without prior leave of the Court, pursuant normally used for litigants seeking redress of alleged to 28 U.S.C. § 1651(a) and the Court's inherent authority to constitutional violations through 42 U.S.C. § 1983. An control and manage its own docket so as to prevent abuse action commenced pursuant to 42 U.S.C. § 1983 requires in its proceedings. proof of the “deprivation of any right[ ], privilege[ ], or immunit[y] secured by the Constitution” or laws of the federal government. 42 U.S.C. § 1983; see also German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D . REPORT–RECOMMENDATION and ORDER N.Y.1995) (“Section 1983 establishes a cause of action for the CHRISTIAN F. HUMMEL, United States Magistrate Judge. deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.”) (quotations The Clerk has sent to the Court for review a complaint filed by omitted). pro se plaintiff Robert H. Ajamian (“Ajamian”). Compl. (Dkt. No. 1). Ajamian has not paid the filing fee and instead seeks *5 Ajamian's § 1983 action should be dismissed for multiple permission to proceed with this matter in forma pauperis reasons. First, Ajamian fails to state a cognizable cause (“IFP”). Dkt. Nos. 2, 5–6, 9, 12–14. of action for which relief can be granted. It is unclear to the Court what civil or constitutional rights were allegedly violated since Ajamian fails to specify the nature of such rights. Ajamian only alleges that defendant failed to make I. Discussion conservative trades on his behalf. Furthermore, the named defendant Nimeh is not asserted to have acted under the color A. Application to Proceed IFP of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir.1994) (noting state action requirement under § 1983); Ajamian has submitted an IFP Application. Despite the Wise v. Battistoni, No. 92–CV–4288 (PKL),1992 WL 380914, absence of a properly completed IFP application before the Court, due to significant efforts made by Ajamian, coupled at *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted).1 with a review of the information provided therein, the Court State action is an essential element of any § 1983 claim. See finds that Ajamian may properly proceed with this matter IFP. Gentile v. Republic Tobacco Co., No. 95–CV–1500 (RSP) (DNH), 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y.1994) (citation omitted)). There is no allegation B. Allegations in the Complaint that Nimeh acted under color of state law with regard to the stock trades. As such, § 1983 is not the proper vehicle Section 1915(e) of Title 28 of the United States Code directs through which Ajamian could seek judicial review of his that, when a plaintiff seeks to proceed IFP, “the court shall claims. Accordingly, to the extent Ajamian seeks to remedy dismiss the case at any time if the court determines that ... the a constitutional violation through § 1983, the complaint fails action or appeal (i) is frivolous or malicious; (ii) fails to state a to state a cause of action to which relief can be granted and claim on which relief may be granted; or (iii) seeks monetary should be dismissed. relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint 1 All unpublished opinions cited to by the Court before permitting him to proceed with his action. in this Report–Recommendation are, unless otherwise noted, attached to this Recommendation. Ajamian asserts that defendant Nimeh, a stock broker, Ajamian also asserts that Nimeh violated his rights under violated his constitutional rights by placing non-conservative “U.S. civil statutes 22 A.L.R. 5th 261, 152 A.L.R. Fed. 1.” trades using his retirement account between March 2005 Compl. at 1. Reliance on either authority is misplaced. Both and September 2011, which resulted in a $30,000.00 loss. references are not to federal statutes but to American Law Compl. at 2–4. Ajamian contends that he is entitled to treble Reports articles, the former concerns statutes on assaults damages, or $90,000.00. Id. For a more complete statement motivated by hate crimes and ethnic intimidation while the of Ajamian's claims, reference is made to the complaint. latter discusses governmental actions that constitute “reverse 261 (1994). The complaint is devoid of any factual allegations the amount in controversy is set at $90,000.00, thus meeting concerning these legal issues. Therefore, despite Ajamian's the amount in controversy requirement, Ajamian has failed conclusory statements, he has failed to state a claim in citing to satisfy the domicile requirement for purposes of diversity these articles. jurisdiction. Accordingly, where the domicile requirement is unmet, diversity jurisdiction does not exist and the Court It is well established that a federal court is obligated to lacks subject matter jurisdiction to consider the action. When notice on its own motion the basis for its own jurisdiction; subject matter jurisdiction is lacking, dismissal is mandatory. thus, the Court must examine whether diversity jurisdiction United States v. Griffin, 303 U.S. 226, 229 (1938); FED. R. exists. City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, CIV. P. 12(h)(3) (“If the court determines at any time that it 512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 lacks subject-matter jurisdiction, the court must dismiss the F.2d 591, 605 (2d Cir.1988) (challenge to subject matter action.”). Thus, dismissal of this action may be warranted. jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3) (court may raise basis of its jurisdiction sua sponte ). To the extent Ajamian seeks to bring criminal charges Ajamian asserts the following claims, “breach of fiduciary against Nimeh, Ajamian lacks a cognizable right in that duty, misrepresentation/non-disclosure, activity suitability, regard. It is well-settled law in this Circuit that there is no unauthorized trading, breach fo contract, error charges, constitutional right to have criminal wrongdoers prosecuted. failure to supervise, margin calls, negligence, criminal See Connecticut Action Now, Inc. v. Roberts Plating Co., 457 misrepresentation, fraudulent concealment....” Compl. at 1. F.3d 81, 86–87 (2d Cir.1972) (“It is a truism ... that in our Thus, the Court considers whether it has subject matter federal system crimes are always prosecuted by the Federal jurisdiction under 28 U.S.C. § 1332, which confers diversity Government, not by ... private citizens.”). jurisdiction. Lastly, attached to Ajamian's complaint is a “FINRA *6 For diversity jurisdiction to exist, the matter in [ (“Financial Industry Regulatory Authority”) ] dispute controversy must exceed $75,000 and must be between resolution claim information tracking form” dated July 19, 2013, which indicates that a claim was filed against Nimeh, (1) citizens of different States; to be resolved through arbitration proceedings. Compl. at 5–8. While Ajamian does not refer to a FINRA arbitral (2) citizens of a State and citizens or subjects of a foreign award in his complaint, allege specifics facts surrounding state; the circumstances of an arbitral award, request specific (3) citizens of different States and in which citizens or judicial action on such an award, or attach the award to his subjects of a foreign state are additional parties; and complaint, it appears that Ajamian filed a claim with FINRA for arbitration proceedings to resolve disputes against Nimeh. (4) a foreign state, defined in section 1603(a) of this title, Furthermore, Ajamian alludes to an arbitration proceeding as plaintiff and citizens of a State or of different States. by inserting an arbitration number in the caption of his complaint. Compl. at 1. In light of his pro se status, the 28 U.S.C. § 1332(a). For purposes of diversity jurisdiction, Court recommends that Ajamian be afforded an opportunity an individual's citizenship is the individual's domicile, which to amend his complaint to make clear this cause of action. is determined on the basis of two elements: “(1) physical Ajamian should also be provided an opportunity to provide presence in a state and (2) the intent to make the state a home.” more facts in his amended complaint which would allow the See Zimak Co. v. Kaplan, No. 98–CV–3176(DAB)NRB., Court, and defendant, to assess whether a meritorious action 1999 WL 38256, at *2 (S.D.N.Y. Jan. 28, 1999) (quoting is stated. 15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 102.34[2] (3d ed.1998)). Corporations are deemed to be “a citizen of any State by which it has been incorporated and of the State where it has its principal place II. Amendment of business[.]” 28 U.S.C. § 1332(c). *7 In sum, Ajamian's complaint in its current form fails to state a claim for relief and fails to state the Court's subject In the “Parties” section of the complaint and civil cover matter jurisdiction. As such, dismissal would be appropriate light of Ajamian's pro se status, this Court recommends that 28 U.S.C. § 1915 and § 1915A, plaintiff's complaint is prior to dismissing this action, Ajamian be directed to amend DISMISSED for failure to state a claim upon which relief can his complaint to provide clearer details regarding his claim. be granted and for lack of subject matter jurisdiction; and it Ajamian is directed to draft a complaint which satisfies the is further plausibility standard outlined in Ashcroft v. Iqbal, 556 U.S. 662 (2009), requiring plaintiffs to “plead [ ] factual content RECOMMENDED that alternatively, in light of plaintiff's pro se status, prior to dismissing plaintiff's complaint in that allows the court to draw the reasonable inference that its entirety, he be provided an opportunity to amend his the defendant is liable for the misconduct alleged.” Id. at complaint to amplify the facts that would support his claim 678 (citations omitted). Specifically, Ajamian is directed to for entitlement to relief; and it is further draft a complaint which Ajamian have to allege specific facts sufficient to plausibly state that the FINRA arbitration award, if it exists, merits judicial review. ORDERED that the Clerk serve a copy of this Report– Recommendation and Order on the parties in accordance with the Local Rules. III. Conclusion Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such WHEREFORE, it is hereby objections shall be filed with the Clerk of the Court “within fourteen (14) days after being served with a copy ORDERED that plaintiff's IFP application (Dkt.Nos.12– of the ... recommendation.” N.Y.N.D.L.R. 72.1(c) (citing 14)2 is GRANTED;3 and it is further 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL 2 Plaintiffs' pending letter motions and exhibits PRECLUDE APPELLATE REVIEW. Roldan v. Racette, (Dkt.Nos.12–14) were filed in support of his IFP 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 application, which was first filed on March 24, F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 2014 (Dkt. No. 2). 72, 6(a), 6(e). 3 Plaintiff should note that although his IFP Application has been granted, plaintiff will still be Filed May 22, 2014. required to pay fees that he may incur in this action, All Citations including copying and/or witness fees. Not Reported in F.Supp.3d, 2014 WL 6078425 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.